BETH ALLISON STROUD v. IRVIN WESLEY STROUD
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RENDERED: October 29, 1999; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001919-MR
BETH ALLISON STROUD
APPELLANT
APPEAL FROM HICKMAN CIRCUIT COURT
HONORABLE WILLIAM L. SHADOAN, JUDGE
ACTION NO. 95-CI-00040
v.
IRVIN WESLEY STROUD
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE:
COMBS, HUDDLESTON, and KNOPF, Judges.
COMBS, JUDGE:
The appellant, Beth Allison Stroud, appeals from
an order of the Hickman Circuit Court denying her motion for
permission to relocate with the parties' two children and instead
awarding physical custody of the children to the appellee, Irvin
Wesley Stroud.
We reverse.
Upon the dissolution of their marriage on October 5,
1995, Beth and Irvin were awarded joint legal custody of their
children, born July 3, 1989, and April 3, 1991, with Beth to have
primary physical custody.
On April 3, 1997, Irvin filed a motion
requesting that he be designated primary physical custodian
instead of Beth.
Following a hearing on May 20, 1997, the court
denied the motion, concluding that there were no allegations of a
bad faith refusal or inability to cooperate and no proof that
Beth had refused to cooperate in matters relating to the parties'
children.
On February 12, 1998, Beth filed a motion requesting
permission to relocate to Nashville where she had obtained better
employment.
At the time of the hearing, Beth had secured a
position with Vanderbilt University Medical Center.
As a
registered nurse, Beth was offered a salary of $42,000.00 per
year for working three days a week — plus two extra days a month.
In addition, by accepting the position, Beth became entitled to
other benefits, including:
dependent care services, a generous
retirement package, additional educational benefits for herself,
and college tuition discounts for the parties' children.
Irvin objected to the proposed move and filed a motion
again requesting a change in primary physical custody.
In this
motion, Irvin alleged that Beth had repeatedly demonstrated an
inability to cooperate in good faith regarding matters related to
their children.
He complained that Beth failed to communicate to
him that she had resigned her former employment, failed to give
him notice of her proposal to move to Nashville before her motion
was filed, and failed to inform him of the illness of one of the
children while in school.
At the May 26, 1998, hearing, Irvin
also alleged that Beth had changed her telephone number several
times without notifying him.1
1
Intertwined with the other issues was an ongoing dispute
regarding the ethnicity of appellant's boyfriend.
-2-
In a final order entered July 15, 1998, the trial court
denied appellant's motion to relocate and switched physical
custody of the children from Beth to Irvin.
Despite the fact
that it was not asked to modify the original joint legal custody
decree but rather merely to change the physical custodian, the
trial court nonetheless determined that the provisions of KRS
403.340 governed its decision.
In so doing, the court determined
that Beth's "employment status and stability" were unacceptable.
In Mennemeyer v. Mennemeyer, Ky. App., 887 S.W.2d 555
(1994), we held that relocation from Kentucky to Florida by the
primary residential custodian was insufficient to trigger a reexamination of a joint custody arrangement.
Although the trial
court in Mennemeyer was aware that relocation alone was
insufficient to support an order modifying sole custody, it
erroneously determined that it was authorized to make a de novo
review of the physical custody issue.
A trial court cannot
"modify a joint custody award over the objection of one party
without first making a finding that there has been an inability
or bad faith refusal of one or both parties to cooperate."
Id.
at 558.
As in Mennemeyer, there has not been a finding in this
case of an inability or bad faith refusal of the parties to
cooperate.
On the contrary, the trial court's order indicates
that:
[t]hese parties do not agree as to a change
of the primary custodian of the infant
children; however, they have to some extent
cooperated with the children, as the father
was allowed an extensive amount of visitation
with the children . . . .
-3-
Order at 2. (Emphasis added.)
From the timing and sequence of
events, it appears that Irvin's motion to change physical custody
was prompted exclusively by the proposed move.
There is
absolutely no evidence to suggest that Beth's proposal to
relocate to Nashville was motivated by vindictiveness or whim;
rather, it appears to have been made along sound career concerns
tailored toward improving the family’s standard of living.
If the trial court had an insufficient reason to reexamine the joint custody decree, then it follows equally
forcefully that it had no reasonable basis to deny the appellant
her request to move the children to Tennessee.
Absent an order
in the decree or a provision in the agreement of the parties, a
custodial parent — whether joint or sole — is not required to
seek court approval prior to moving to another location.
If one
party opposes the move, then the issue becomes whether the joint
custody decree can be modified.
At this juncture, the court must
determine if there is sufficient evidence to find bad faith or an
inability to cooperate, weighing the factors set forth in KRS
403.270 and the children's best interests.
Mennemeyer, supra.
In this case, the threshold requirement of Mennemeyer was never
met.
The order of the Hickman Circuit Court denying
appellant's request to relocate the children to Nashville and
granting primary physical custody to the appellee is reversed.
ALL CONCUR.
-4-
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Tiffany Gabeheart Poindexter
Charlotte B. Scott
Paducah, KY
Emil Samson
Mayfield, KY
-5-
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